USPTO Defends Posts On Trump's Leadership After Backlash

Law360 (November 1, 2020, 8:10 PM EST) -- After the U.S. Patent and Trademark Office came under fire for social media posts applauding President Donald Trump's leadership on intellectual property days before the election, the office said Friday that it was just emphasizing the excellence of America's IP system.

The agency said in a statement that critics were misreading the messages it posted Thursday on Twitter, Facebook and LinkedIn as a political endorsement. The identical posts quoted USPTO director Andrei Iancu as saying, "just a reminder, under President Trump's leadership, the U.S. intellectual property ecosystem ranks #1 in the world, according to the 2020 International IP Index."

"We disagree with those who would inject partisan politics into the message of the tweet, which is simply to highlight the continued excellence of the American innovation ecosystem," the office said in a statement.

The social media posts, which referred to an annual IP report released by the U.S. Chamber of Commerce that has consistently ranked the U.S. number one since it began in 2012, racked up dozens of comments harshly criticizing the office for praising Trump with less than a week until the presidential election.

"Just a reminder, the 'ranking' was done by the US Chamber of Commerce & the US ranked #1 during every year of President Obama's leadership as well. Shame on Iancu for making the statement & shame on @USPTO for tweeting it," Christine Haight Farley, director of the program on information justice and intellectual property at American University Washington College of Law, said in a tweet.

"If IP is important to the economy, as the @USChamber's index suggests, then a partisan @USPTO undermines stakeholders' expectation of a consistent application of the law," she added.

Like many other critics, Farley suggested the posts may have violated the Hatch Act, the 1939 law that prohibits executive branch employees from engaging in political activity, and said that "the timing of the 'reminder' of Trump's 'leadership' & the false suggestion that our rank increased under his presidency are a bad look for @USPTO!"

Irene Calboli, an intellectual property professor at Texas A&M University School of Law, noted on Twitter that "the U.S. IP ecosystem has ranked excellently under many presidents before."

"Director Iancu should not use his official position and the @USPTO account to campaign politically," she wrote. "Every single past U.S. administration promoted the success of our IP system. Shame, the USPTO is not this."

Woody Pollack, an IP attorney at Shutts & Bowen LLP, tweeted that "the more I think about this tweet the more pissed I get."

"This is insane and should be immediately taken down," he said. "I would be offended if it were a different administration behind this also. What a sad state of affairs."

Sarah Burstein, a professor at the University of Oklahoma College of Law who specializes in design patents, wrote on Twitter that "the USPTO should not be making misleading, partisan statements. I can't believe I have to say that."

She called the Chamber of Commerce's IP rankings "meaningless garbage" and was unimpressed with the USPTO's statement in response to the criticism.

"USPTO: Tweets a nakedly partisan (and factually misleading) quote right before the election: Patent & Trademark Twitter: Hey, that's not cool. USPTO: You're just imagining things! If you're offended YOU'RE the partisan!!" she tweeted.

The U.S. Chamber of Commerce's IP rankings have placed the U.S. first overall every year since the 2012 inaugural report. The group also compiles rankings of specific areas of IP, and the U.S. has sometimes placed lower, which has attracted attention. The U.S. had been first in patent protection for several years, but fell to 10th in 2017 and 12th in 2018 before rising to second place for the last two years.

Christopher Sprigman, an intellectual property professor at New York University School of Law, commented on the USPTO's tweet by referring to a 2016 article he wrote for Slate that he said shows the index "is hackish and proves basically nothing."

"I'm sorry that the @uspto under Andrei Iancu's leadership has descended to this level," he tweeted.

Some commentators said the reaction to the tweet was overblown. Dennis Crouch, a professor at the University of Missouri School of Law wrote on his Patently-O blog that "I personally don't think that this is a big deal and only barely a violation of norms if at all."

"Trump has been president for four years, and his administration should get some credit for maintaining the #1 ranking," he said, posting a tweet that he said showed that the USPTO's Twitter account also "promoted Obama as an innovation leader during his presidency."

--Editing by Sarah Golin.

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